By Michael Kelsheimer
Whatever your political views, undocumented workers and the businesses that knowingly or unknowingly employ them are coming under the microscope.
If you compile recent headlines, you’ll know President Trump has implemented two immigration bans, is challenging so-called “Sanctuary Cities” that do not help federal immigration enforcement, has instructed government agencies to become more aggressive in enforcement of immigration laws and is already reviewing proposals to strengthen the border wall. On top of these measures, the E-Verify program for verifying worker status is likely to become mandatory.
Further, employers who try to do it right by using the H-2B guest-worker visa program have been dealt a stiff blow. The returning-worker exemption, which extends the stingy 66,000 nationwide cap on H-2B nonimmigrant workers, has not been renewed for 2017. The H-2B cap has already been reached for 2017, so the hope for help there is gone.
According to a Pew Research Center study conducted in 2014, undocumented workers represented more than 20 percent of the workforce in the landscaping industry. The national unemployment rate is presently at 4.5 percent (PDF), almost at a 10-year low. If all the undocumented workers vanish, there will be hardly any place to find replacements. Some landscapers will raise wages and prices to attempt to secure a documented workforce, but only the most elite clientele will be able to bear such increases.
Making things more risky for businesses, fines are up. Knowingly hiring undocumented workers carries fines between $539 and $4,313 per worker on a first offense. Failing to properly complete the Form I-9 carries a fine of $216 to $2,156 per document. Employers found to engage in a pattern or practice of hiring or recruiting undocumented workers may be penalized up to $3,000 per undocumented worker and receive six months in jail.
Finding employees to replace immigrant workers is primarily a business-driven issue, but protecting your business from fines and you from jail can be addressed with some legal guidance.
Develop an I-9 compliance program
Compliance is not just about making sure to follow the I-9 directions. It’s about making sure your business is not letting applicants get by with shoddy documentation, no documentation or requiring extra proof if they suspect someone is undocumented. At the same time, it’s about not imposing requirements above and beyond what the I-9 requires, which can result in a lawsuit by the government or an applicant.
To protect against these issues, funnel handling I-9 issues through one person within your organization and make sure that person is trained to properly handle completing I-9s. The government finds, on average, five errors in each I-9 when it does an audit. Each error can result in a fine. Create and maintain an internal I-9 compliance policy and mandate that it be followed by all hiring supervisors to ensure consistency in handling I-9s (this also will be helpful to protect the owners from liability if they consolidate handling I-9s with one person and that person does not follow the policy). Note, there is a new I-9 form for 2017. Be sure it is used with all new hires.
A good I-9 compliance policy will:
- Control who completes the I-9 paperwork;
- Mandate the timing to complete the I-9;
- Outline the correct procedure (and clarify incorrect procedures like asking for additional information, accepting suspect documents or preferring certain documents over others);
- Arrange for the retention of I-9s;
- Mandate the reverification of temporary employment authorizations. Failure to reverify documents that expire is a huge issue, and a solid compliance policy will include a procedure to calendar and follow up on reverification; and
- Plan for an I-9 self-audit once a year.
Let me also offer a word about using independent contractors. Many businesses try to avoid the I-9 and other issues by treating individuals who should be employees as contractors. They assume that doing so will protect them from violations. That is a fantasy. The government also will pursue business owners who intentionally circumvent the I-9 rules by trying to treat undocumented workers as contractors. It may be wise to require all contractors to ensure I-9 compliance for their employees and provide access to their I-9s on request for verification.
Conduct an I-9 self-audit
It’s wise for business owners to conduct an I-9 self-audit on a regular basis to be sure their records are in top shape for an audit. This practice is especially true for business owners who delegate the responsibility to complete I-9s to another employee. A second set of eyes with the goal of making sure the forms are perfect will usually find some errors.
In addition to examining each form to be sure it’s correctly filled out, employers should check whether I-9s on former employees are properly retained, how no-match communication from the government has been handled and whether reverification procedures are on schedule. If you find any errors, initiate correction procedures immediately.
Prepare for an audit or raid
Audits are conducted both by U.S. Immigration & Customs Enforcement (ICE) and, on a cursory level, by the Department of Labor. In either case, employers are entitled to three days’ notice before an I-9 audit. Raids are a different story. If ICE appears with a warrant, you will not have any notice and the agents will not care about interrupting your business operations.
If you receive notice of an audit, immediately contact your employment or immigration lawyer. They will protect you from inadvertently making mistakes with the auditor. Then work with your lawyer to conduct an I-9 audit immediately and correct any errors before the audit begins.
If ICE appears for a raid, immediately contact counsel and ask them to come to the site. ICE will not wait for your lawyer to arrive if they have a search warrant, so it will be necessary to examine the warrant yourself. Carefully review the warrant to ensure it is genuine. If you observe agents exceeding the warrant authority, ask to speak to the agent in charge and raise the issue. If you do not stand up for your rights, you may lose the opportunity.
If you are concerned a raid might happen, keep a current copy of all I-9 records and related documents on a flash drive to provide the agent in charge when they arrive. This may help minimize the time the agents spend at your facility.
Provide guidance for workers
If you are audited or the subject of a raid, government representatives may seek to speak with your employees about your procedures and their status. You can provide guidance to all your employees to help them avoid issues with government officials, but do not single any employee out for advice. Singling an employee out suggests you think there is a problem and can be used against you.
Immigration advocacy group CASA offers a guide that warrants consideration. Individuals who have concerns when faced with an ICE raid should:
- Stay calm and not run away;
- Exercise their right to remain silent;
- Refuse to sign any document without showing it first to a lawyer;
- Carry all legal identification documents at all times, implying fake or illegal documentation should not be carried;
- Identify a well-qualified immigration attorney who can represent the employee if issues should arise and keep the lawyer’s contact information handy at all times.
Comply with additional state laws
Business owners may be subject to additional state laws regarding employment of undocumented workers and verifying immigration status. Some states have passed laws requiring employers of various sizes to use the E-Verify system. Other states have additional separate penalties. Arizona, for example, will shut down a business that violates for 10 days. In Virginia, it’s a Class 1 misdemeanor with possible jail time of up to 12 months. Owners should be careful to understand the requirements in their states and incorporate those into their plans.
Kelsheimer is a Partner at Gray Reed & McGraw and focuses his practice on the employment law needs of Texas businesses and executive employees. Kelsheimer attended Texas Tech University and then Baylor Law School. He is also the author of Texas Employer Handbook, a guide from Texas business owners. Contact him at mkelsheimer@grayreed.com.
